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Legal Information: Texas

Custody

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Updated: 
April 10, 2018

What factors will a judge look at when deciding if a parent who committed violence or sexual assault can get sole or joint managing conservatorship (custody)?

Whether or not an abusive parent can become the joint or sole managing conservator may depend on how long ago the domestic violence or sexual assault happened. If a parent is filing for sole or joint managing conservatorship, the judge will look at:

  1. whether during the two-year period of time before filing for conservatorship (or while the court case is pending), the party who is applying for conservatorship was physically abusive or sexually abusive towards:
    • his/her spouse; 
    • a parent of the child; or
    • any person under 18 years old;* and
  2. whether at any time before filing of the petition (or while the court case is pending):
    • a final protective order was issued against either party; or 
    • either party engaged in a history or pattern of family violence, child abuse or child neglect.**

* Tex. Fam. Code § 153.004(a)
** Tex. Fam. Code § 153.005(c)

When will a judge refuse to appoint an abusive parent as a joint or sole managing conservator?

A judge may not appoint joint managing conservatorship between the parties if s/he finds that there is:

If any of the above are true, the judge will also assume that it is not in the child’s best interest for the abusive parent to be a sole managing conservator or to be the conservator who has the exclusive right to determine the primary residence of a child.  However, that parent has the right to present evidence to try to change the judge’s mind.*

* Tex. Fam. Code § 153.004(b)

If my child was conceived from sexual assault, can the parent (offender) get any rights to my child?

If the judge believes that your child (the one who the court case is about) was conceived due to sexual assault or aggravated sexual assault by the other parent (even if there was no arrest or conviction), the judge may not order joint managing conservatorship between the parents (the victim-parent and the offender-parent).*   In addition the judge could terminate the parent-child relationship with the offender-parent as follows:

  1. The judge has the option to terminate the parent-child relationship if all of the following are true:
    • during the two years after the birth of the child, the parents lived together or were married;
    • the offender-parent was convicted of a sexual assault or aggravated sexual assault that led to the child being conceived; and
    • termination is in the best interest of the child.** 
  2. The judge must terminate the parent-child relationship with the offender-parent if all of the following are true:
    • during the two years after the birth of the child, the parents did not live together and were not married;
    • the judge finds “clear and convincing evidence” that offender-parent committed sexual assault or aggravated sexual assault that led to the child being conceived but there does not need to be an arrest or conviction; and
    • termination is in the best interest of the child.***  

* Tex. Fam. Code § 153.004(b)
** Tex. Fam. Code § 161.007(b)
*** Tex. Fam. Code § 161.007(a)

When can a parent who committed domestic violence or sexual assault be denied all access to a child?

The judge can deny a parent all access to a child if:

  • there is a history/pattern of committing family violence within the two years before filing the petition or while the court proceedings are pending (taking into consideration any final protective order that was issued within the past two years);
  • the judge finds that the abusive parent committed sexual assault or aggravated sexual assault that led to the child being conceived (even if there was no arrest or conviction); or
  • the parties were relatives and had sexual contact that was prohibited by law, which led to the child being conceived (even if there was no arrest or conviction).*

However, even if any of the above are true, the judge can still grant access if:

  • the judge decides that allowing the parent access is not a danger to the child's physical or emotional health;
  • the judge decides that access is in the best interest of the child; and
  • the judge approves a possession order that will protect the child and any other victim from the abusive parent. The order may require:
    • supervised access;
    • exchange of the child in a protective setting;
    • that the parent not drink alcohol and not use any drugs within 12 hours before the time the child is with him/her (including while the child is with him/her); or
    • that the parent attend a batterer’s prevention program or any program the judge finds appropriate.**

* Tex. Fam. Code § 153.004(d),(f)
** Tex. Fam. Code § 153.004(d-1)

If the other parent committed domestic violence or sexual assault, can s/he become a possessory conservator?

Possibly. The law says that the judge “must consider” any incident of family violence or sexual abuse in deciding whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.*  To read about when a judge will place further restrictions on a parent’s possession of and access to a child, go to When can a parent who committed domestic violence or sexual assault be denied all access to a child? and When can a parent who committed violence be ordered to have supervised visitation only?

* Tex. Fam. Code § 153.004(c)
 

When can a parent who committed violence be ordered to have supervised visitation only?

The judge can refuse to allow unsupervised visitation (in other words, the parent can only have supervised visitation) if you can prove that there is a history/pattern of past or present child neglect, child abuse, or family violence committed by:

  • the parent who is requesting unsupervised visitation;
  • any person who resides in that parent's household; or
  • any person who that parent allows to have unsupervised access to the child during that parent's periods of possession of/access to the child.*

One factor that the judge can consider when making his/her decision is if there was a protective order issued against that parent (or against the other person mentioned above) during the two-year period before the case began up through the present date.**

However, even if any of the above are true, the judge can still allow unsupervised visitation if the parent presents enough evidence that unsupervised visitation is in the child's best interest and s/he succeeds in convincing the judge.***

* Tex. Fam. Code § 153.004(e),(g)
** Tex. Fam. Code § 153.004(f)
*** Tex. Fam. Code § 153.004(e)

If the other parent gets a protective order issued against him/her after the court case is over, do I have the right to know?

Yes. If a conservator gets a final protective order issued against him/her after the date of the order establishing conservatorship, s/he has to notify the other parent (conservator) within 30 days. Failure to do so is a Class C misdemeanor crime.*

* Tex. Fam. Code § 153.076 (b-1)(3),(c-1)(3),(d)   

If the other parent's new partner committed domestic violence or is a registered sex offender, do I have the right to know?

Yes.  Each conservator must notify the other conservator in any of the following circumstances:

  1. S/he lives with for at least 30 days, marries, or intends to marry a person who s/he knows is:
    • a registered sex offender; or
    • currently charged with a crime that would require the person to register as a sex offender if convicted. Note: The notice must be given as soon as possible – at the latest, 40 days after they begin to live together or 10 days after they get married. The notice must include a description of the crime that led to (or could lead to) the sex offender registration.*
  2. S/he begins living with a person who s/he knows has a final protective order against him/her (filed by someone else) that is in effect on the date they begin living together. Note: The notice must be given as soon as possible – at the latest, 30 days after they begin to live together.**
  3. S/he is living with a person against whom s/he gets a final protective after and s/he continues to live with that person even after 60 days have passed since the final protective order was issued. Note: The notice must be given as soon as possible – at the latest, 90 days after the date the final protective order was issued.***
  4. S/he allows a person against whom s/he gets a final protective after to have unsupervised access to the child and s/he continues to allow that person to have unsupervised access even after 60 days have passed since the final protective order was issued. Note: The notice must be given as soon as possible – at the latest, 90 days after the date the final protective order was issued.***

If the conservator does not properly notify the other conservator within the timeframe required, as explained above, s/he can be guilty of a Class C misdemeanor crime.****

* Tex. Fam. Code § 153.076(b),(c)
** Tex. Fam. Code § 153.076(b-1)(1),(c-1)(1)
*** Tex. Fam. Code § 153.076(b-1)(2),(c-1)(2)
**** Tex. Fam. Code § 153.076(d)